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Is doing RSD a conflict of interest for UNHCR?

May 6, 2010

Reviewing UNHCR’s new Policy on Refugee Protection and Solutions in Urban Areas, Oxford University’s Alice Edwards made this thought provoking comment about UNHCR’s refugee status determination role:

At the same time as UNHCR engages in the operational delivery of refugee rights, it also plays the role of ‘gatekeeper’ or, in its own words, it ‘polices’ the refugee population with negative attendant consequences for its relations with refugees. In many situations, the organization decides who is and who is not a refugee, and distributes humanitarian assistance while advocating for rights as well as monitoring the implementation of those same rights. Recognizing that the organization is often working in a vacuum of state protection, it is time that it addresses some of these ‘conflicts of interest’ more broadly.

– Excerpt from “Legitimate” protection spaces: UNHCR’s 2009 policy, in Forced Migration Review 34 (February 2010).

Is deciding refugee cases a conflict of interest with refugee protection, or is it part of refugee protection?

UNHCR has described RSD as a “core protection function,” on the logic that in order to promote the protection of refugees it first must identify them. UNHCR RSD is designed to be non-adversarial. The fact that UNHCR is making critical decisions about refugees does not necessarily mean that UNHCR is in conflict with refugee rights. If UNHCR makes decisions fairly, and is seen to be fair, it could enhance refugee protection in some circumstances.

But being a gatekeeper does make UNHCR’s relationship to refugees and asylum-seekers more complicated, and just because it is the policy to be non-adversarial does not mean that this is how all UNHCR staff perform the role in all cases. UNHCR offices face a range of conflicting pressures that can adversely affect refugee status determination.

Imagine a situation where a host government begins to loudly complain that UNHCR is too lenient in recognizing refugee status on its territory, and it begins to detain and deport UNHCR-recognized refugees. Imagine if then the UNHCR recognition rate drops significantly, as happened in Lebanon around 10 years ago. Are there actually fewer genuine refugees applying, or is UNHCR rejecting some genuine refugees in hopes of winning more tolerance from the government for the others?

Unless UNHCR’s RSD system is beyond reproach, it’s impossible to know.

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2 Comments
  1. Dario Carminati permalink
    May 8, 2010 9:47 am

    It is a fact that in most countries, specially in Asia, RSD is conducted not by government but by UNHCR either because those countries are no parties to the 51 Convention and its 67 Protocol or they do not have their own status determination processes. While the responsibility under the Statute and under the Convention and protocol it is not identical there is interest that the decisions be as far as possible identical. As the then Director of International Protection put it to the High Commissioner in the 60s: it comes within the protection function to ensure that groups or individuals who are within UNHCR competence are also recognised as refugees by the country of asylum and given the rights resulting from refugee status. “Eligibility determination is not an end in itself, it is part of the function of international protection“. UNHCR’s supervisory role over the application of the Convention(s) on refugees is clearly spelled out in the Statute. There is then a clear interest on the part of UNHCR to be interested in the recognition process to avoid that its supervisory task become abstract (as we can have UNHCR reducing their recognition rate, as indicated in the article, we could also have countries that say that all the provisions of the Convention are applied but there are no refugees in their country…)
    In the sixties Belgium, France, Italy, Austria involved UNHCR in their procedures (even the UK amended at that time their procedures to allow notice and full access to UNHCR to appeals). As such the international community since the 51 Convention has accepted a fairly large measure of international supervision in the field of refugees as compared to other fields. Reducing UNHCR’s involvement in RSD would not help with the growing pressure for the internationalisation of human rights. As a corollary, it remains of the paramount importance that RSD’s procedures and standards are clear, fair, transparent and uniformly applied. I believe that it is no longer a tall order and after a long internal and external process of gestation, there is now not only consensus but an effective “common interest“ network.
    Dario Carminati
    8 May 2010

  2. May 20, 2010 8:29 am

    UNHCR’s Director of International Protection Services Volker Turk has given a strong answer to doubts about the basis of UNHCR’s mandate to do RSD. In a speech yesterday in Toronto (available at http://www.unhcr.org/4bf406a56.html), he said:

    “UNHCR is authorized and, in fact, obliged to declare which individuals or groups may be of concern to the Office under its mandate. This may be in relation to a specific individual(s) or to a wider group within the above categories. The effect of UNHCR exercising its mandate in this way puts other external actors ‚on notice‛ of the Office’s interest in and legal responsibilities (albeit to varying degrees depending on the context) towards persons covered by the designation.”

    The speech is a very important commentary on UNHCR’s ambiguous and unique role in supervising refugee law while simultaneously playing a central role in implementing refugee policy.

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